February 04, 2010

In Healey v. Lakeridge Health Corporation, 2010 ONSC 725, two patients (X and Y) at an Ontario hospital were diagnosed with TB. The hospital notified 4,402 persons who had had contact with X & Y at the hospital. Class actions were commenced. The classes were: (1) the infected class: people who developed TB; (2) the uninfected class: people who did not but complained of psychological ailments as a consequence of realizing they had been exposed and could have developed TB; and (3) family members of people in class (1) or (2) with derivative claims under Ontario law.

The hospital succeeded in having the claims of the uninfected class, and the derivative clailms based on the uninfected class claims, dismissed on a motion for summary judgment.

I recommend the reasons for those interested in the issues. They are by Perell J. His reasons are always worth reading.

Perell J's reasons include the conclusion that the hospital did not owe a duty of care to the uninfected persons in relation to the psychological damage claim. There is an extended discussion of proximity aspect of the duty of care analysis. The motion judge held the plaintiffs' case failed at the proximity stage and that even if there was a prima facie duty it would be negated, in any event, by policy considerations. He also held that the actual psychological injury alleged did not disclose a cause of action that required a trial.

People cynical about aspects the class action process won't find anything in the content of the dismissed claims to mollify that cynicism.

[1] In 2003-2004, two patients at the Defendant Lakeridge Health Corporation (“Lakeridge”), a public hospital with sites in Oshawa, Bowmanville, Port Perry, and Whitby, were diagnosed with tuberculosis (“TB”), a contagious disease. Lakeridge, as it was obliged to do under the Health Protection and Promotion Act, R.S.O. 1990, c. H.7, notified Durham Public Health, which, in turn, notified 4,402 persons, who had come into contact with the two infected patients, described as the “index patients,” and Durham Public Health recommended to those notified that they be tested for TB.

[4] The class actions, which have been certified under the Act, are on behalf of three classes of persons: (1) the Infected Class; (2) the Uninfected Class; and (3) derivative claimants under the Family Law Act, R.S.O. 1990, c. F.3, s. 61.

[5] In the class actions, it is alleged that the Defendants failed to properly diagnose active TB and failed to take precautions to prevent the spread of infection and risk of harm.

[8] Although the Uninfected Persons did not test positive for TB and although none of them were diagnosed with a recognizable psychiatric illness caused by the TB notification, approximately 3,500 Uninfected Persons have claims for damages for psychological injury as a result of being notified of exposure to TB.

[13] By way of a summary of the reasons for these major conclusions, it is my opinion that:

▪ There is no genuine issue requiring a trial that Lakeridge does not have a duty of care to the Uninfected Persons. This conclusion follows because if Lakeridge had a duty of care to the Uninfected Persons, it would be a duty not previously recognized by the law and, therefore, to establish the duty, the Plaintiffs must satisfy the Anns v. Merton tests for the recognition of a new duty of care. There is, however, no genuine issue requiring a trial that: (a) the proximity element of the Anns v. Merton test for a duty of care is not satisfied; and (b) there are public policy reasons for not recognizing a duty of care by Lakeridge.

▪ Assuming these conclusions about the duty of care are wrong and that Lakeridge did owe a duty of care to the Uninfected Persons, there is no genuine issue requiring a trial that the Uninfected Persons did not suffer a type of personal injury for which the law provides compensation. Putting this point differently, while the evidence shows that the Uninfected Persons suffered psychological injuries, the law is that in the absence of accompanying harm to a body part, tort law provides no compensation for psychological injury unless it is a “recognizable psychiatric illness,” but in this case, there is no genuine issue requiring a trial that the Plaintiffs did not prove that any of the Uninfected Persons had a recognizable psychiatric illness caused by the TB notification.

...

▪ Assuming the conclusions about duty of care and compensable injury are wrong, and assuming causation-in-fact was established, there is no genuine issue requiring a trial that any compensable psychological injuries suffered by the Uninfected Persons do not satisfy the test for remoteness set out in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII), [2008] 2 S.C.R 114 and other cases.

...

[184] Following the methodology used by the Chief Justice in Mustapha, it is my opinion that in the case at bar: (1) there is no genuine issue requiring a trial that Lakeridge did not owe the Uninfected Persons a duty of care to prevent psychological injury; (2) the issue of whether the Defendants breached the duty of care is not before the court on these motions; (3) as already noted above, there is no genuine issue requiring a trial that the psychological injuries suffered by the Uninfected Persons do not constitute compensable damages in law; (4) there is a genuine issue requiring a trial that the notification of exposure to TB caused in fact the psychological injuries of the Uninfected Persons; and (5) there is no genuine issue requiring a trial that the psychological injuries suffered by the Uninfected Class are too remote in law.

[294]The third and related problem for an aggregate assessment is that the Plaintiffs’ methodology, which is based on the predictions of psychiatric harm opined by Dr. Maunder was not borne out by the evidence of the actual experiences of class members. Although Dr. Maunder opined that 30% to 40% of the Uninfected Persons would suffer from a recognizable psychiatric illness within the criteria for diagnosis under DSM IV, this opinion is belied by the evidence presented by the Plaintiffs. None of the deponents suffered from a recognizable psychiatric illness and the Plaintiffs’ affiants were acknowledged to be representative of the persons most harmed by their reaction to the notification of exposure to TB.

Comments

In Healey v. Lakeridge Health Corporation, 2010 ONSC 725, two patients (X and Y) at an Ontario hospital were diagnosed with TB. The hospital notified 4,402 persons who had had contact with X & Y at the hospital. Class actions were commenced. The classes were: (1) the infected class: people who developed TB; (2) the uninfected class: people who did not but complained of psychological ailments as a consequence of realizing they had been exposed and could have developed TB; and (3) family members of people in class (1) or (2) with derivative claims under Ontario law.

The hospital succeeded in having the claims of the uninfected class, and the derivative clailms based on the uninfected class claims, dismissed on a motion for summary judgment.

I recommend the reasons for those interested in the issues. They are by Perell J. His reasons are always worth reading.

Perell J's reasons include the conclusion that the hospital did not owe a duty of care to the uninfected persons in relation to the psychological damage claim. There is an extended discussion of proximity aspect of the duty of care analysis. The motion judge held the plaintiffs' case failed at the proximity stage and that even if there was a prima facie duty it would be negated, in any event, by policy considerations. He also held that the actual psychological injury alleged did not disclose a cause of action that required a trial.

People cynical about aspects the class action process won't find anything in the content of the dismissed claims to mollify that cynicism.